Counsel

Martin Park — Counsel for the Crown

Ashli Pinnock — Counsel for the accused Beverley Bernard

Judgment

P.T. O'Marra J.

The Charge

1Ms. Bernard is charged that on December 1, 2015, she imported cocaine into Canada contrary to section 6(1) of the Controlled Drugs and Substances Act.

The Issue and Legal Framework

2The sole issue in this trial was whether the Crown has proven beyond a reasonable doubt that Ms. Bernard had the requisite mental state to support a finding of guilt. It was agreed by counsel that the minimum mental state required in order to sustain a finding of guilt was whether or not Ms. Bernard was wilfully blind to the fact that the four jars in her suitcase that she brought into Canada contained cocaine. It was not enough for the Crown to prove that Ms. Bernard was wilfully blind to the fact that any offence was committed through the arrangement that she made with her niece, Kissian Bailey to bring back four jars to Canada. The Crown did not have to prove that Ms. Bernard was aware that the drug that she turned a blind eye to was cocaine, as opposed to another kind of drug. The Crown can establish guilt by demonstrating that Ms. Bernard had actual knowledge that the containers contained cocaine. This is a higher burden for the Crown to meet. See R. v. Blondin, [1971] 2 W.W.R. 1 (B.C.C.A.), aff'd, [1971] S.C.J. No. 42, and R. v. Collymore, [2003] O.J. No. 2322 see para. 11 and 12.

The Evidence

Background Facts

3The background facts with respect to this matter were not in dispute. On December 1, 2015 Ms. Bernard returned from a trip to Kingston, Jamaica with her two year old granddaughter. She was 'roved' for inspection and stopped by Canadian Border Security Officer ("CBSA") Eric Cullen after she passed the primary point inspection station at Pearson International Airport. Ms. Bernard told Officer Cullen that she was a personal support worker. Her passport stamps revealed that she made the following trips to Jamaica: November 24, 2015; January 2, 2015; July 26, 2013; July 4, 2013; April 4, 2013; March 7, 2013 and August 10, 2012. CBSA Officer Cullen marked her Declaration Card for verification. Ms. Bernard possessed a number of agricultural/food products that were declared and determined to be admissible. Ms. Bernard was referred to secondary for inspection.

Secondary Inspection and Discovery

4At secondary, Officer Cullen inspected a suitcase that contained four jars. The first jar that he picked up contained Jamaican curry powder. In his opinion, usually a jar of curry powder was much more malleable but this particular jar was quite stiff. He removed the remaining three jars – one was labelled psyllium fibre powder, and the remaining two jars were labelled Metamucil. Before Officer Cullen took possession of the four jars, Ms. Bernard indicated that the jars were for someone else. Initially, her mood was jovial and carefree. However, when Officer Cullen removed the four jars from her suitcase for inspection she became sombre and morose.

5Upon inspection, the x-ray revealed anomalies within the jars. According to Officer Cullen this indicated that each jar contained two different substances. Further inspection revealed that each container had four plastic bags that contained cocaine. The total amount of cocaine seized was 1,976 grams. The agreed-value of the cocaine, if sold at the gram level, varied from $158,080 to $217,360. If the cocaine was sold by ounces, it would have been $19,741 to $127,026. If sold at the kilogram level it could have sold from $76,000 to $123,500. Ms. Bernard was arrested by Officer Cullen and the R.C.M.P. were contacted.

6Officer Cullen testified that the first jar was not easy to open and seemed to be sealed with silicone. He could not recall once he opened the lid of the first jar whether there was a paper safety seal across the top. He poked his hand into the curry powder and felt the plastic bag that contained the cocaine.

7In cross-examination, Officer Cullen testified that the exterior appearance of the jars did seem normal. He agreed with the suggestion that when he handled the Metamucil jars, they seemed to a certain extent malleable.

Witnesses

8Ms. Bernard and her niece, Kissian Bailey testified at this trial.

Ms. Beverley Bernard's Evidence

Her Background

9Ms. Bernard gave the following evidence: At the time of her arrest she was fifty-four years old and a laid off Personal Support Worker. She had worked for approximately ten years in that capacity. She was a mother of four children and four grandchildren. Originally, she was born in St. Catharines, Jamaica. She immigrated to Canada approximately twenty-six years ago. At the time of the allegations she resided in Brampton, Ontario.

10In cross-examination, Ms. Bernard could not recall when she was laid off. She indicated that she earned $13.00 per hour. Routinely she worked 30-40 hours but when pressed on this point she stated that she worked 60-70 hours a week. Then she added sometimes she worked as many as 100 hours per week. She could not indicate to the Court what her approximate annual income was during her years of full time employment.

The Reason to Travel to Jamaica

11Ms. Bernard testified that she had family members and friends that still lived in Jamaica. Often she travelled to Jamaica to visit her husband, Keith Lohman. In cross-examination, she stated that in 2010 she married Mr. Lohman. He chose to remain in Jamaica in order to work in a juice factory.

12Originally, Ms. Bernard had planned to escort her sister's biological father, Keith Ashley back to Jamaica from Canada. He was receiving medical treatment in Ontario. Ms. Bernard's sister, Marvelette Ashley purchased her a ticket the week before her departure date of November 24, 2015. Ms. Bernard was also going to bring her two year old granddaughter. However, only a few days before their scheduled date of departure her step-father was not permitted to travel due to his doctor's advice. Nevertheless, Ms. Bernard and her granddaughter travelled to Jamaica.

13In her direct examination, Ms. Bernard testified that during her one week stay in Jamaica she spent her time visiting family and friends. She did not stay with her husband, but rather her sister. In cross-examination, she testified that she did not stay with her husband as he was working a night shift that week and that she did not wish to stay alone. She testified that on one occasion she did visit Mr. Lohman with her granddaughter. However, in reply the Crown called CBSA Officer Kourakos who had initial contact with Ms. Bernard after her arrest. Officer Kourakos was called to testify in regards to a brief conversation that she had with Ms. Bernard. Officer Kourakos testified that Ms. Bernard claimed that she did not see her husband while in Jamaica because they had been fighting. Furthermore, he had a new girlfriend.

The Trip to Buy Fish, the Unknown Male and His Sister "Mouchee"

14Ms. Bernard testified that on November 30, 2015, the day before she was scheduled to fly back to Canada, Mr. Lohman called to tell her that their children wanted her to bring back to Canada a selection of local fish. Ms. Bernard called her niece, Kissian Bailey to drive her to the 'fish bay' in order to help buy fish. According to Ms. Bernard, when she was in Jamaica it was her practice never to travel nor drive alone. As luck would have it, Ms. Bailey was also in Jamaica at the same time as her aunt. Ms. Bailey had travelled to Jamaica with two barrels of merchandise items for her family's store in Old Harbour. It was Ms. Bernard's understanding that Ms. Bailey was staying in Jamaica until January 15, 2016.

15The arrangement was for Ms. Bernard and her granddaughter to travel by taxi to meet Ms. Bailey at a nail salon. Ms. Bernard met her niece at the nail salon. Ms. Bailey was in the company of a male. The male never introduced himself to Ms. Bernard, and did not engage her in a meaningful conversation other to say "good afternoon". After Ms. Bailey finished her manicure, Ms. Bailey, the male and Ms. Bernard left the salon. Ms. Bernard testified that as she was following behind, her niece turned to her and asked her where she was going. Ms. Bernard responded that she thought that they were going to take a cab. Ms. Bailey said to Ms. Bernard that there was no need for a cab as the male was going to drive everyone to the fish bay.

16According to Ms. Bernard as she entered the car, the male suddenly asked her "where in Canada do you live?" Ms. Bernard asked "why?" The male responded that his sister Mouchee lived in Canada. Ms. Bernard told the male that there were many people nicknamed Mouchee. The male advised Ms. Bernard that he had two sisters – Denden and Dinesha that happened to live in Brampton. In cross-examination, Ms. Bernard testified her daughter had a friend named Mouchee. They attended the same high school. When pressed in cross-examination about how well she knew Mouchee, Ms. Bernard did not provide any meaningful details about Mouchee's background, nor Mouchee's full name.

17In cross-examination, the Crown pointed out that in her police interview, Ms. Bernard stated that the unknown male asked her if she could bring a "set of seasoning" to Mouchee. In other words, the first conversation between Ms. Bernard and the male occurred at the fish bay and not in his car. This seemed to conflict with her evidence-in-chief.

18While the women shopped, the unknown male remained inside his car. Ms. Bernard testified that she was never introduced to the male.

19After they left the Fish Bay, the male drove the car to a store approximately fifteen minutes away. Ms. Bernard went in alone and purchased a bag of banana chips. They drove to Ms. Bailey's home, put the fish in her refrigerator and subsequently made their way to Ms. Bailey's store. While on route, Ms. Bailey asked Ms. Bernard if she had contacted the driver that was supposed to drive her to the airport. At this point the unknown male said that he could drive her as he worked close by the airport. Ms. Bernard accepted his offer to drive her to the airport. Her recollection of this conversation was contradicted by her statement to the police. Ms. Bernard told the R.C.M.P. that while she talked to the unknown male, the actual hired driver just happened to call at the same time. She testified that she told the hired driver not to pick her up as she already made other arrangements. However, she told the court in cross-examination that although she did have a cellphone with her, it was not paid up by a sister that lived in Canada.

The Four Bags, Ms. Bailey, the Unknown Male aka "O'Neil" and the Trip to the Airport

20Ms. Bernard testified that the next day, December 1, 2015, while she was getting ready in her sister's front room of her house to leave for the airport, Ms. Bailey and the unknown male arrived by car. Ms. Bernard's suitcases were on the veranda. According to Ms. Bernard, when she saw her niece walk towards the veranda with four bags, Ms. Bernard exploded in a rage and yelled "I am not bringing anything back….you guys always want me to bring things back!" Ms. Bernard was upset over the fact that she would have to pay the excess baggage fee in the amount of $25.00.

21With respect to who actually gave the four bags to Ms. Bernard, she testified that Ms. Bailey handed the bags to her, however, according to her statement to police she told Cst. Haggert that the unknown male handed her the "bag". It was also important to note that according to Ms. Bailey's testimony the unknown male never left his car. This evidence was at odds with Ms. Bernard's recollection of her encounter on the veranda.

22Rather than declining to accept the bags, inexplicably, Ms. Bernard started to examine each bag. The first bag contained fish and seasoning destined for "Janice". The second bag contained Ackee, a local vegetable, for Ms. Bailey's daughter. The third bag contained Jamaican curry powder. She was told that the curry powder was for Mouchee. The fourth bag contained three jars of (one jar was actually labelled psyllium fibre powder) Metamucil. Her immediate reaction concerning the contents of the third and fourth bags was to loudly proclaim that all of the items could be easily purchased in Canada. The unknown male commented that the Metamucil was for Mouchee to help her lose weight and that Mouchee usually purchased Metamucil when she travelled to Jamaica. Ms. Bernard testified that she just gave in to the request and decided to pack the extra items. Ms. Bernard pronounced to everyone present that she would never tell anyone when she was coming to Jamaica ever again. Ms. Bernard testified that since she did not want to pay the $25.00 fee for the extra suitcase, she told her sisters to put all the bags in her suitcase.

23Ms. Bernard testified that the unknown male drove Ms. Bailey to her home but he returned shortly afterwards to drive Ms. Bernard to the airport. On the way to the airport, Ms. Bernard's granddaughter asked the unknown male his name. He advised that his name was O'Neil. Ms. Bernard inquired with O'Neil how she was going to contact Mouchee in order to deliver her the Metamucil. O'Neil refused to provide Ms. Bernard with Mouchee's phone number but instead Ms. Bernard gave O'Neil her number to pass onto Mouchee. When they arrived at the airport Ms. Bernard attempted to give O'Neil $7,000 (Jamaica Dollars) in order to pay him for driving her to the airport. O'Neil took $1,000 and handed her the balance. She never saw O'Neil again.

24Ms. Bernard testified that at no point in time did she inquire about the nature of the relationship between Ms. Bailey and O'Neil.

25Ms. Bernard testified emphatically that she did not know that the four jars contained cocaine nor did she suspect that there was anything unusual about the jars.

26Finally, in cross-examination Ms. Bernard acknowledged that if she did not travel to Jamaica, called Ms. Bailey for a ride to the fish bay, met the unknown male named "O'Neil", asked where in Canada she was from, known someone named "Mouchee", accepted a ride to the airport and not refused to take the bags to Canada, the scheme to import cocaine into Canada would never have been brought to fruition.

Ms. Kissian Bailey's Evidence

Reasons for Ms. Bailey's Trip to Jamaica

27Ms. Bailey was Ms. Bernard's niece. She was forty years of age and a mother of two children aged nineteen and seven years of age. Ms. Bailey operated a small family owned business in Jamaica called "Ever Bless Boutique". On November 28, 2015 she travelled to Jamaica in order to accompany several barrels through Jamaican customs that contained merchandise for her store.

28In the past, she travelled to Jamaica on many occasions. It was not uncommon for Ms. Bailey to remain in Jamaica for long periods of time.

29She was aware that it was Ms. Bernard's intention to bring a friend's father back to Jamaica. This conflicted with Ms. Bernard's evidence on whose father she was supposed to assist.

The Trip to the Fish Bay, Kumar and Mouchee

30On November 28, 2015, Ms. Bailey arrived in Jamaica. She testified that she left her bags at her cousin's house in Gutters, St. Catharines and visited Ms. Bernard and her aunt Eura.

31The next time that Ms. Bailey saw Ms. Bernard was on November 30, 2015. Ms. Bailey confirmed that Ms. Bernard needed her assistance to buy fish at the fish bay. The arrangement was for Ms. Bernard to meet Ms. Bailey at the nail salon in Old Harbor. According to Ms. Bailey she was with a man named Kumar. She claimed that in September 2015 she met Kumar through Althea Williams, a friend that lived in Canada. Apparently, on September 3, 2015, Ms. Williams called Ms. Bailey while Ms. Bailey was in Jamaica. She wanted Ms. Bailey to bring back magnums of alcohol. Ms. Williams gave Ms. Bailey Kumar's phone number in order for arrangements to be made for Kumar to purchase and bring the magnums of alcohol to Ms. Bailey. Ms. Bailey testified that on September 4 while she was at the airport. Kumar's sister brought her sugar cane, guinup, seasoning spice and the magnums. She was advised that the spice was for Mouchee. After returning to Canada, Mouchee allegedly was given the bag that contained the spice through Ms. Bailey's daughter.

32Ms. Bailey testified the day that her aunt, Ms. Bernard came to her salon Kumar was also present. He was supposed to bring his sister to Ms. Bailey's store because she was going to buy "something". Apparently, Kumar's sister cancelled her plans but inexplicably Kumar still showed up at the nail salon. Ms. Bailey could not offer any explanation for Kumar's continued presence at the salon.

33Ms. Bailey testified that Kumar drove her, Ms. Bernard and her granddaughter to the fish bay to purchase fish. Ms. Bailey stated that Kumar followed her and Ms. Bernard as they purchased fish. This conflicted with Ms. Bernard's testimony that the unknown male remained with his car while they shopped for fish.

34Ms. Bailey stated that she recalled a conversation about her aunt knowing Kumar's sister, Mouchee in Canada, however she never testified about hearing any conversation about Kumar driving her to the airport. It was unclear in her evidence as to how she found out about Kumar driving her aunt to the airport. But common sense indicated that Kumar must have told her that he intended to drive Ms. Bernard to the airport as they both appeared together in Kumar's car, on December 1, 2015.

The Bags, Kumar and the Departure to the Airport

35Ms. Bailey testified that on the morning of December 1, 2015, Ms. Bailey and Kumar attended the address where Ms. Bernard was staying. Ms. Bailey observed Ms. Bernard on the veranda with her aunts, their children and two suitcases. Ms. Bailey thought that her aunt was in a bad mood. Ms. Bailey testified that she asked her aunt to bring some fish and ackee to "Janice". As well, Ms. Bailey advised her aunt that Kumar needed her to bring a bag to her sister in Canada. She witnessed Kumar hand the bag to Ms. Bernard. Ms. Bernard was upset that she could be charged the excessive baggage fee. Moreover, she loudly stated that Metamucil and the curry powder were items that could be readily purchased in Canada.

36Ms. Bailey testified Kumar drove her home and she "guessed" that Kumar returned to drive her aunt to the airport.

37In cross-examination, Ms. Bailey testified that she did not know Kumar very well. Ms. Bailey testified that they texted back and forth about business. The business relationship was never fully explored in her evidence so it was uncertain the kind of business relationship that existed at this point in time. Ms. Bailey did not provide any meaningful details about Kumar. Ms. Bailey provided a vague and generic description of Kumar as being tall, slim and dark, with a goatee.

38As well, in cross-examination, Ms. Bailey testified that while they were in Kumar's car, Kumar observed Ms. Bernard on the veranda and felt that she was angry. Ms. Bailey testified that Kumar asked Ms. Bailey to ask her aunt to bring the bag to his sister Mouchee because Ms. Bernard seemed upset.

39Ms. Bailey testified that Ms. Bernard was upset about paying the excess baggage fee. Ms. Bernard was angry because she already paid for an extra bag on the outbound flight to Jamaica and did not expect to pay the fee again. Ms. Bernard inserted the extra bag into her suitcase.

40Ms. Bailey testified that after Ms. Bernard's arrest, Ms. Bernard never contacted Ms. Bailey to find out more about Kumar, the mystery man.

41Ms. Bailey denied that the fish story, Kumar, and the explanation of how Ms. Bernard ended up with the items, were lies.

Analysis of Credibility and W.D.

Do I Believe Ms. Bernard's Evidence?

42I observed Ms. Bernard give her evidence at this trial. I listened to her explanation as to how she came into possession of four jars stuffed with cocaine. I have reminded myself with respect to the principles as set out in R. v. W. (D). They are as follows: If I believe Ms. Bernard's evidence that she did not know that the four jars that she brought into Canada contained cocaine, I must find her not guilty of the offence of importing. Secondly, even if I do not believe Ms. Bernard's evidence or any other defence evidence, and if it leaves me with a reasonable doubt as to whether she did know that the jars contained cocaine, I must find her not guilty. Thirdly, even if Ms. Bernard or any other defence evidence does not leave me with a reasonable doubt that she did know that cocaine was inside the four jars, I may only find her guilty of importing if, on the rest of the evidence I do accept, it proves beyond a reasonable doubt that Ms. Bernard did know that cocaine was contained in the four jars.

43The Supreme Court of Canada commented on the principle of proof beyond a reasonable doubt in several cases.

44The Supreme Court held that the meaning of proof beyond a reasonable doubt was as follows: "the standard of proof is higher than ... a balance of probabilities yet less than proof to an absolute certainty." See R. v. Lifchus, [1997] 3 S.C.R. 320.

45The Supreme Court held that in order to convict, something less than absolute certainty and something more than probable guilt is required. The Court further defined the reasonable doubt standard by explaining that it falls much closer to absolute certainty than to proof on a balance of probabilities. See R. v. Starr (2000), 2000 SCC 40 , 147 C.C.C. (3d) 449.

46I have rejected Ms. Bernard's evidence on how she received the four jars.

Circumstantial Evidence

47The Defence emphasized that this was a circumstantial case that the Crown presented. The Defence argued that if there were reasonable inferences other than guilt available on the evidence, the Crown's evidence has not met the standard of proof beyond a reasonable doubt. As the Supreme Court of Canada held in R. v. Villaroman, 2016 SCC 33 , 2016 S.C.C. 33, gaps in the evidence may result in other than guilt as long as those inferences assessed logically and with common sense, are reasonable ones, an acquittal ought to be entered.

48The Crown, on the other hand, argued that the circumstantial evidence led to more direct knowledge that Ms. Bernard was aware of the fact that she imported cocaine. The Crown submitted that this was a strong circumstantial case.

49I have found that Ms. Bernard's testimony bordered on absurdity and at times defied common sense.

50I felt that her evidence on simple matters was obfuscated. For example, Ms. Bernard struggled in both estimating her annual income and the date that she apparently was laid off. In my view, these questions were straightforward but her answers were a diversion in answering the simple question: How did Ms. Bernard afford so many round trips to Jamaica from Toronto during the three year period before her arrest?

51Ms. Bernard claimed that she spent half of her life in Jamaica as well made numerous trips to visit family and friends. But despite this Ms. Bernard still needed the assistance of her niece to drive her around St. Catharines, Gutters and old Harbour.

52Ms. Bernard's explanation to travel to Jamaica in order to accompany her step-father was squarely contradicted by Ms. Bailey's testimony. Ms. Bailey testified that Ms. Bernard's reason to travel to Jamaica was to accompany a "friend's" father, not her step-father.

53Another contradiction in her evidence was exposed in the unchallenged evidence of Cst. Kourakas. Ms. Bernard testified that she did see her husband when she was in Jamaica, however, Cst. Kourakas testified that after her arrest Ms. Bernard told her that she did not see her husband when she was in Jamaica as they were fighting and that he had a new girlfriend.

54A further inconsistency in Ms. Bernard's testimony was her assertion that while they were at the fish bay "O'Neil" asked her to take the bag back to Canada. However, in her statement to the R.C.M.P. Ms. Bernard told Cst. Heggart that Ms. Bailey asked her to take the spice back to Canada for the first time when they were on her sister's veranda the day that she left for Canada.

55Ms. Bernard testified that after she was given the four bags, Ms. Bailey was driven to where she was staying by "O'Neil". But, Ms. Bernard told Cst. Heggart that "O'Neil" stayed and never left.

56Ms. Bernard told the R.C.M.P. that "O'Neil" handed her a bag, however, her testimony contradicted her police statement. Ms. Bernard testified that Ms. Bailey delivered the bags to her. Ms. Bernard further perpetrated the inconsistency by proclaiming at no point did "O'Neil" touch the bags. Ms. Bernard testified that she was "200%" certain on this point.

57In my view, these inconsistencies completely undermined Ms. Bernard's story and her credibility. I disbelieve her explanation as to how she received the bags on December 1, 2015.

The Second Prong of R v. W. (D), Wilful Blindness Doctrine and Knowledge

58Since I do not believe Ms. Bernard's evidence, does any of the evidence leave me with a reasonable doubt as to whether she knew that the jars contained cocaine?

59Ms. Bailey was an untruthful witness mainly because she perpetrated an unbelievable story. The story was undermined by Ms. Bernard's testimonial inconsistencies which have been already highlighted.

60Ms. Bailey's testimony did not have the ring of truth. Especially in light of the fact that Ms. Bailey testified that in September 2015, Kumar successfully arranged for her to bring back magnums of alcohol for Mouchee in Canada. It did not make sense that on December 1, Kumar (aka O'Neil) entrusted approximately $200,000 worth of cocaine to an unwitting and untested courier in Ms. Bernard. It made more sense that a drug exporter would have used the successful courier, Ms. Bailey.

61In my view, the fact that Ms. Bernard did not know "O'Neil's" full name or any meaningful details about his relationship with her niece warranted suspicion. Furthermore, Ms. Bernard's acceptance of a ride from a complete stranger and her comment about the items easily could have been purchased in Canada, were circumstances that led to the commission of this offence, and was a result of wilful blindness.

62For wilful blindness to be established, the Crown need only prove that the failure to inquire was motivated or informed by a desire to avoid the truth, or knowledge on the part of Ms. Bernard that avoiding an inquiry would have shielded her eyes and ears from the guilty truth: see R. v. Lagace, [2003] O.J. No. 4328, 181 C.C.C. (3d) 12 (C.A.), at para. 28.

63Ms. Bernard's evidence revealed inherently suspicious events with details that were unclear and defied common sense. Ms. Bernard's evidence alone was capable of supporting a finding of deliberate ignorance. It is open to this Court to find that Ms. Bernard must have suspected that there was more than just Jamaican Island spice curry powder, psyllium fibre and Metamucil being imported to Canada, but she declined to make inquiries that would have confirmed her suspicions, and preferred to remain ignorant.

64The evidence reasonably supported the inference that Ms. Bernard did have knowledge that the jars contained cocaine. By her own evidence she handled the jars. Officer Cullen's evidence on the lack of "malleability" of the first jar that he inspected, suggested that it contained another substance.

65Furthermore, Ms. Bernard's sudden change in demeanor upon the inspection of her suitcase betrayed her knowledge. The evidence of Officer Cullen was not post-offence conduct; rather, it was some circumstantial evidence about Ms. Bernard's behaviour during the commission of the offence. The Ontario Court of Appeal has held that this type of evidence by Customs officers can be admissible to establish that an accused person was aware of the contents in question: see R. v. Goulart-Nelson, [2004] O.J. No. 4010, 63 W.C.B. (2d) 190 (C.A.).

66Since the Crown's case was largely unchallenged, and based on my findings of credibility, and on the rest of the evidence that I have accepted, the Crown has proven the case beyond a reasonable doubt. Ms. Bernard is guilty of the offence as charged.

Released: November 16, 2017

Justice P.T. O'Marra